Ahwang & Anor v Slatcher [2021] QDC 40

DISTRICT COURT OF QUEENSLAND CITATION: Ahwang and Anor v Slatcher [2021] QDC 40 PARTIES: JAFFA GODFREY AHWANG (appellant) v MATTHEW JOSEPH SLATCHER (respondent) PATRICK JOHN SABATINO (appellant) v MATTHEW JOSEPH SLATCHER (respondent) FILE NO: 084/2019 085/2019 DIVISION: Appellate PROCEEDING: Appeals pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Mackay DELIVERED ON: 12 March 2021 DELIVERED AT: Mackay HEARING DATE: 1 March 2021 JUDGE: Smith DCJA ORDER: 1. Each appeal is dismissed. 2. The orders made in the Magistrates Court at Mackay are confirmed. CATCHWORDS: ABORIGINALS- NATIVE TITLE TO LAND- Rights and Interests under traditional laws and customs- whether section 211 of the Native Title Act 2003 (Cth) applied- whether Native Title rights arose under than under the Act CRIMINAL LAW – DEFENCE – HONEST CLAIM OF RIGHT – TRADITIONAL ABORIGINAL HUNTING PRACTICES – Whether defence under s 211 of the Native Title Act 2003 (Cth) available- whether defence of honest claim of right was available at trial- whether defence disproved by the prosecution LEGISLATION: Criminal Code 1899 (Qld) ss 1, 22 Justices Act 1886 (Qld) ss 43A, 222, 223, 225 Native Title Act 2003 (Cth) ss 211, 223, 224 Nature Conservation Act 1992 (Qld) ss 88, 160, 167 -- 1 of 22 -- 2 CASES: Akiba v The Commonwealth [2013] HCA 33; (2013) 250 CLR 209, discussed Akiba v The Commonwealth (No 2) [2010] FCA 673; 204 FCR 1, discussed Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; 134 FCR 16, cited Chief Officer of Customs v El Hajje [2005] HCA 35; (2005) 224 CLR 159, cited Cross Country Realty Pty Ltd v Peebles [2006] QCA 501; [2007] 2 Qd R 254, applied DPP Reference (No 1) [1999] NTSC 23; (1999) 8 NTLR 148, cited Dudley and Others v Department of Primary Industries [2018] SASFC 23; (2018) 231 LGERA 13, applied Forrest v Commissioner of Police [2017] QCA 132, applied Heffernan v Ibell [2016] QDC 154, cited Karpany v Dietman [2013] HCA 47; (2013) 252 CLR 522, cited Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, discussed McDonald v Holeszko [2019] QCA 285, distinguished Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422, cited Molina v Zaknich (2001) 24 WAR 562; 125 A Crim R 401, cited Mueller v Vigilante [2007] WASC 259; 177 A Crim R 506, applied Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, applied Olsen v the Grain Marketing Board [1962] Qd R 580, cited Parsons v Raby [2007] QCA 98, cited Pearce v Paskov [1968] WAR 66, cited R v SCO & SCP [2016] QCA 248, cited R v Waine [2005] QCA 312; [2006] 1 Qd R 458, cited R v Walsh [1984] 2 Qd R 407, cited Sabatino & Anor v Slatcher [2020] QDC 308, cited Scriven v Sargent (No 2) [2017] QCA 95; [2018] 1 Qd R 282, distinguished Stevenson v Yasso [2006] QCA 40; [2006] 2 Qd R 150, discussed Teelow v Commissioner of Police [2009] QCA 84; 2 Qd R 489, applied The Commonwealth v Akiba [2012] FCAFC 25; 204 FCR 260, cited Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, discussed Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, considered COUNSEL: M Duncan for the appellants -- 2 of 22 -- 3 BJ Power for the respondent SOLICITORS: Torres Strait Legal Service for the appellants Litigation Branch of the Department of Environment and Science for the respondent Introduction [1] On 16 April 2017 the appellants hunted and killed a female green sea turtle in the waters off Mackay. They were convicted for this on 10 September 2019. [2] This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) against their convictions in the Mackay Magistrates Court. [3] The question for determination is whether the prosecution had excluded the possibility that the appellants had an honest claim of right under s 22 of the Criminal Code 1899 (Qld) that they were able to hunt and kill the turtle under a native title or traditional/customary right. [4] The parties agreed that the appeals should be heard together.1 Nature of the appeal [5] Section 223(1) of the Justices Act provides that the appeal is to be way of rehearing on the evidence given in the proceeding before Justices. [6] In Forrest v Commissioner of Police2 it was said that an appeal by way of rehearing requires the Appellate Court to decide the case for itself. It must conduct a real review of the evidence and make up its own mind about the case giving due weight to the Magistrate’s view.3 [7] Section 225(1) of the Justices Act provides that: “On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.” [8] Finally, in Teelow v Commissioner of Police4 Muir JA noted that usually the powers of an Appellate Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the Appellate Court, the decision the subject of the appeal is the result of some legal, fact or discretionary error. Charge [9] Each of the appellants were charged by complaint with the following charge: “That on 16 April 2017, in the locality of Murray Creek Bay, [the defendant] not being an authorised person did take a protected animal and the taking had not been authorised under the Nature Conservation 1 Sections 43A and 225(3) of the Justices Act 1886 (Qld). 2 [2017] QCA 132. 3 Parsons v Raby [2007] QCA 98 at [23]. 4 [2009] QCA 84; 2 Qd R 489 at [4]. -- 3 of 22 -- 4 Act in contravention of s 88(2) of that Act. The protected animal is particularised as a chelonia mydas and is classed as vulnerable wildlife.” Notice of appeal [10] The notice of appeal sets out the following grounds: “The learned Magistrate erred in law in finding there was no defence as the defendant actually believed on reasonable grounds in the existence of facts which if true would have exonerated him from liability. The defendant honestly believed that the property belonged to himself and that he had a justified claim to it. The defendant was a Torres Strait Islander who honestly believed that Australian law would enforce a right of possession which is recognised by his customary law thus establishing a defence of claim of right.” Proceedings below [11] The prosecutor tendered a certificate pursuant to s 160(4) of the Nature Conservation Act which included a map which established the offence location. [12] Also, formal admissions were read into the record which were: (a) The appellants did take a protected animal namely a chelonia mydas (a green sea turtle). (b) The taking was within the definition contained in the Nature Conversation Act. (c) The chelonia mydas was a protected animal under the Nature Conversation Act. (d) The map titled “location of vessel SG50Q” was created by Ms Julia Barr of the Spatial Data Centre and the position on the map marked with a red dot was where the turtle taken. [13] Gary Mooney was called to give evidence. He was an Executive with the North Queensland Council and occasionally does work in the Mackay community. As an elder he does the land and sea management program. His part of the Yuwi people of the Mackay area and is a traditional land owner of the Yuwi country. His traditional customs allow him to look after the country, land and sea. As regards to hunting, he had been given the mandate from the 1990’s to issue hunting permits.5 The permits are given, for example, for funerals, birthday parties or family gatherings. His country extends as far north as Midge Point, as far south as Cape Hillsborough and then west to the Great Dividing Range and east to the reef. It includes Murray Creek or St Helens Bay.6 He didn’t issue any permits to the appellants. He knows the appellants through their fathers and their brothers. They’re not part of his country but live in his area. They’re not Aboriginal people or part of his community, the Yuwi people.7 5 Transcript day 1 p 20.42. 6 Transcript day 1 p 21.26. 7 Transcript day 1 p 22.15. -- 4 of 22 -- 5 [14] In cross examination, he said that he does the hunting as well as the Yuwi people.8 He would say not give permits to people who a breached policy of theirs. He also said that he was aware about Torres Strait Islander culture, beliefs and customs.9 He agreed that TI people had feastings, a beer day, stone opening, weddings and funerals.10 The witness said he was born in Innisfail but his family came from Mackay on his mother’s side. He started traditional hunting when he was about seven or eight years of age.11 He agreed that he went hunting with the appellant Ahwang’s grandfather’s brother.12 He said that he spoke to the appellant Ahwang the previous year about hunting and told him that he was the one that issued hunting permits and he wouldn’t give them to just anybody.13 He agreed that Ahwang’s grandfather’s brother Rocky Ahwang hunted in the area.14 He agreed that there were some Torres Strait Islanders in the Mackay area.15 [15] George Tonga gave evidence that he was a senior elder for the Yuwibara people.16 He also gives hunting permits.17 On 20 June 2016, he issued a permit to the appellants and Henry Ahwang which related to the location and the days they were going hunting.18 The permit was only valid for a day.19 He agreed that he had the authority to issue the permits for Murray Creek to St Helens Bay.20 The permit was tendered as Exhibit 4 together with the cash receipt book entry, Exhibit 5. [16] In cross-examination, the witness said he did not still handle the permit system.21 He agreed that the appellant Sabatino had asked him for a permit for a funeral which was refused because they found turtles cut and left in a gully.22 He agreed that he told the appellant Sabatino that Sabatino would have to go and see somebody else about a permit.23 He agreed that he never alleged that the appellant Sabatino did the wrong thing.24 He also conceded he had dropped out as President of the Yuwibara Corporation in 2017.25 He said he saw no evidence of the turtle being cut up and dumped in the gully.26 No one is issuing permits under Yuwibara.27 [17] Craig Bambling, a district officer from Queensland Boating and Fisheries gave evidence. On 16 April 2017, he was patrolling and intercepted Mr Sabatino and he recorded the conversation. 8 Transcript day 1 p 23.25. 9 Transcript day 1 p 24.7. 10 Transcript day 1 p 24.11. 11 Transcript day 1 p 25.5. 12 Transcript day 1 p 25.17. 13 Transcript day 1 p 26.5. 14 Transcript day 1 p 27.40. 15 Transcript day 1 p 28.32. 16 Transcript day 1 p 31.25. 17 Transcript day 1 p 31.37. 18 Transcript day 1 p 32.10. 19 Transcript day 1 p 32.22. 20 Transcript day 1 p 33.5. 21 Transcript day 1 p 34.45. 22 Transcript day 1 p 35.25. 23 Transcript day 1 p 35.30. 24 Transcript day 1 p 36.11. 25 Transcript day 1 p 38.40. 26 Transcript day 1 p 40.17. 27 Transcript day 1 p 43.32. -- 5 of 22 -- 6 [18] The recorded conversation was tendered as Exhibit 9. A number of photographs were tendered as Exhibit 10 and photocopies of an official notebook were marked as Exhibit 11. In cross-examination, the witness agreed that he let the appellants take the turtle home.28 [19] Murray Pierce, an investigator for the Great Barrier Reef Marine Park Authority, produced letters to the appellants which were marked as Exhibits 7 and 8. In cross- examination, the witness agreed he spoke to the appellant Sabatino at the Eureka Creek workers camp. This was in relation to an excess take of turtle and possibly dugong in September 2013. He couldn’t recall if there was actual evidence of the appellant Sabatino with the dugong and turtle. The witness said that Sabatino had told him that he had been requested by traditional owner people from the sea country to obtain turtle for them for a ceremony or an occasion.29 [20] Matthew Slatcher gave evidence that he was the assistant director with Great Barrier Reef Marine Authority and was assigned as an investigator. He attended the offence location. In cross-examination explained there was a delay in issuing the summons because he sought legal advice as he was unsure of the jurisdiction. [21] The appellant Sabatino gave evidence that he was born on Thursday Island in 1960 and had always been taught to provide for his family. He had been hunting for about 40 years and didn’t hunt for fun; he hunted for cause. The day they were pulled up was for his son’s wedding. They ask for a permit all the time and sometimes they give it sometimes they didn’t. The last time he asked he was told they didn’t want to give him a permit anymore. They only go and hunt to provide for their family. They don’t kill for nothing. [22] In cross-examination, the witness agreed that he knew that he had to have a permit to do what he was doing.30 He agreed that he didn’t have a permit because he was from Thursday Island.31 He agreed that they had asked for a permit and was told they didn’t hand permits out.32 He agreed that within his own community and traditional owner communities the issuing of permits is up to the traditional owners of the area.33 He said though that it was within his rights to get things such as meat to provide for his family.34 [23] The appellant, Ahwang, gave evidence that he was born in Mackay and his family was from the Torres Strait. His family was brought to Mackay when Japan invaded the Torres Straits. He’s been hunting in the Mackay area for about 40 years. They had a council of elders who gave verbal authority to hunt until 20 years ago. Since the Mabo case in 1992, he has hunted under a Native Title right. He was taught the correct methods of traditional hunting by the elders in Torres Strait Island community and was taught by his grandfather Jaffa Ahwang (deceased) and one of his uncles. On 16 April 2017, he hunted one green turtle in Murray Creek in Mackay with his brother-in-law. It was a special feast for his son’s wedding. They weren’t able to get a permit that day because the two traditional owner groups namely one with George 28 Transcript day 1 p 65.20. 29 Transcript day 1 p 52.5. 30 Transcript day 1 p 68.37. 31 Transcript day 1 p 68.40. 32 Transcript day 1 p 69.5. 33 Transcript day 1 p 69.15. 34 Transcript day 1 p 69.25. -- 6 of 22 -- 7 and one with Gary didn’t see eye to eye. There was a lot of in house squabbling and fighting. They had been hunting for the last 40 years with a permit and this one time without fault they weren’t able to gain one. He honestly believed they were right to hunt that day and were authorised to do so.35 The witness said that he was the current person for the Yuwibara Corporation that gives out hunting permits under the authorisation of Graham Mooney.36 [24] In cross-examination, the witness conceded he knew he had to have a permit when carrying out this activity as at 16 April 2017.37 He agreed he did not have one and he hunted on 16 April 2017 without the permission of the traditional owners.38 He agreed that his bloodline was from Thursday Island and he exercised any rights he might on a permit system within the Murray Creek area.39 Submissions in the Magistrates Court [25] The appellant, Ahwang, spoke on behalf of both appellants. He submitted he did not believe they were guilty and did not believe there was a case to answer. They weren’t able to obtain a permit because there was difficulty getting one. They always do the right thing. They couldn’t locate anyone to authorise their hunting that day so they hunted under the honest belief that they had a right to do so because of the 40 years of hunting. [26] The prosecution submitted that the issue in the case was whether there was any honest claim of right. The prosecution relied on the decision of Heffernan v Ibell.40 It was submitted no defence was raised under s 211 of the Native Title Act. It was submitted that s 22 of the Criminal Code did not apply because there was no authorisation. It was submitted each of the elements had been proved beyond reasonable doubt, s 22 had not been raised and in any event it had been negatived and the appellants should be convicted. Decision [27] The Magistrate in his decision noted that both appellants admitted in cross- examination that they were hunting in the area identified on the map. Both defendants made admissions they did not hold the necessary permit. With respect to s 22 of the Criminal Code and s 211 of the Native Title Act, the Magistrate relied on Heffernan v Ibell.41 The Magistrate found that Exhibit 7 and 8 showed the defendants didn’t hold native title rights and because of their bloodlines there was no defence under s 211 of the Native Title Act. Any mistake was a mistake of law and was not a mistake of fact and in those circumstances s 22 did not apply. The Magistrate found each of the appellants guilty. Appellants’ submissions 35 Transcript day 1 p 73.5. 36 Transcript day 1 p 74.1. 37 Transcript day 1 p 74.30. 38 Transcript day 1 p 74.40. 39 Transcript day 1 p 75.5. 40 [2016] QDC 157. 41 [2016] QDC 157. -- 7 of 22 -- 8 [28] A preliminary point was taken by the appellants. It is submitted that the bringing of the complaint was out of time. It is submitted that on the evidence it may be inferred that Mr Slatcher that complainant was well aware of an offence prior to the commencement of one year before the issue of the complaint. [29] The appellants submit they were hunting in accordance with traditional methods of hunting. In his evidence, the appellant Mr Ahwang said he believed he hunted under a Native Title right since the Mabo case in 1992. [30] It is submitted relying on Akiba v The Commonwealth (No 2)42 that there are native title rights quite independent of s 211 of the Native Title Act which the appellants said they were exercising on the day in question. It is therefore submitted that s 22 of the Criminal Code was not disproved. This is because the appellants had a legal belief of a right to take the turtle for ceremonial purposes. Respondent’s submissions [31] As to the preliminary point the respondent submits that the onus is on the appellants to disprove the averment and they have not done so. The complaint should be regarded as being within time. [32] The respondent submits that neither appellant was authorised to take a green sea turtle under the Nature Conversation Act 1992. It is submitted the elements of the offence under s 88(2) were proved at trial and the offence was proved beyond reasonable doubt. It is submitted that offence charged was not an offence related to property within the meaning of s 22 of the Criminal Code relying on Scriven v Sargent (No 2).43 It is further submitted that even if s 22 of the Code had application to the events charged, the appellants’ evidence was not sufficient to give rise to an honest claim of rights. Section 22 required a belief there is a right recognised at law. The evidence of each of the appellants was that in order to comply with the law they needed to have a permit from the Native Title holders for the area. Both conceded they didn’t have one. Further, each appellant had been sent a letter on 24 March 2014 stating that as they did not hold ancestral connection to the area they were not people who held any native title rights to hunt in the sea off Mackay. This would lead one to the conclusion that each appellant did not in fact believe they had enforceable rights under Australian law to hunt and kill a sea turtle in the sea off Mackay. The preliminary point [33] In this matter the offence occurred in April 2017. The complaint was issued on 30 July 2018. [34] In the complaint it was averred that the complainant became aware of the offence on 26 September 2017. [35] Section 167 of the Nature Conservation Act 1992 (Qld) provides “167 Limitation on time for starting summary proceedings 42 [2010] FCA 673; 204 FCR 1. 43 [2017] QCA 95; [2018] 1 Qd R 282. -- 8 of 22 -- 9 A proceeding for an offence against this Act by way of summary proceeding under the Justices Act 1886 must start— (a) within 1 year after— (i) the commission of the offence; or (ii) the offence comes to the complainant’s knowledge, but not later than 2 years after the commission of the offence; whichever is the later; or (b) if section 163 applies to the offence—within 1 year after— (i) the end of the relevant period; or (ii) the offence comes to the complainant’s knowledge, but not later than 2 years after the end of the relevant period; whichever is the later.” [36] Further s 160(5) of the Nature Conservation Act 1992 (Qld) provides: “5) A statement in a complaint starting the proceeding of any of the following matters is evidence of the matters— (a) that the matter of the complaint came to the knowledge of the complainant on a stated day;” [37] In this case it seems clear to me that this was quite a complex matter. When officers came upon the appellants the taped interview shows they were not sure that an offence had been committed. [38] Indeed Mr Slatcher in his evidence accepted there was some delay as the matter was the subject of legal advice.44 [39] Also the matter was given to Mr Slatcher from Mr Galt in July 2017. [40] In Cross Country Realty Pty Ltd v Peebles45 the Court of Appeal considered a similar provision. It was noted that the term “complainant” refers to the complainant who brings the proceedings. It was also noted that reasonable grounds for suspicion does not equate to knowledge of the offence.46 [41] In this matter there is at the least, an evidential burden on the appellants to rebut the averment.47 I do not consider they have satisfied this burden. There is no evidence the averment is wrong and in light of the complex nature of the case it is likely. [42] I reject the appellants’ argument the complaints were out of time. 44 Transcript day 1 page 59.25. 45 [2006] QCA 501; [2007] 2 Qd R 254 at p 257. 46 [2006] QCA 501; [2007] 2 Qd R 254 at p 258. 47 Chief Officer of Customs v El Hajje [2005] HCA 35; (2005) 224 CLR 159 at [50]. -- 9 of 22 -- 10 Offence [43] Section 88(2) of the Nature Conservation Act 1992 (Qld) provides: “A person must not take a protected animal unless the person is an authorised person or the taking is authorised under this Act.” [44] The term “take” is widely defined in the dictionary. It was undisputed in this case that on 16 April 2017 the appellants had hunted and killed a female green sea turtle with a harpoon and brought it to the motorboat they were using. This was done in the sea near Mackay. Neither appellant was authorised to take a green sea turtle under the Nature Conservation Act 1992 (Qld). It is therefore is clear that each of the elements of the offence was proved. [45] The remaining two issues to be determined by the Magistrate was whether s 211 of the Native Title Act 1993 (Cth) was excluded and further whether s 22 of the Criminal Code was excluded. Section 211 Native Title Act 1993 (Cth) [46] I firstly turn to s 211 of the Native Title Act. [47] Section 211 of the Native Title Act provides: “211 Preservation of certain native title rights and interests Requirements for removal of prohibition etc. on native title holders (1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and (ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and (c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders. Removal of prohibition etc. on native title holders (2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters -- 10 of 22 -- 11 for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests. Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application. Definition of class of activity (3) Each of the following is a separate class of activity: (a) hunting; (b) fishing; (c) gathering; (d) a cultural or spiritual activity; (e) any other kind of activity prescribed for the purpose of this paragraph.” [48] Section 223 of the Native Title Act provides: “NATIVE TITLE ACT 1993 - SECT 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. Statutory rights and interests -- 11 of 22 -- 12 (3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests . Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act. Subsection (3) does not apply to statutory access rights (3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants). Case not covered by subsection (3) (4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests): (a) in a pastoral lease granted before 1 January 1994; or (b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.” [49] Section 224 of the Native Title Act provides: “NATIVE TITLE ACT 1993 - SECT 224 Native title holder The expression native title holder , in relation to native title, means: (a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust--the prescribed body corporate; or (b) in any other case--the person or persons who hold the native title.” [50] In the Native Title Act Case,48 the High Court held that the effect of s 211 is to exclude State laws from affecting the freedom of native title holders to enjoy the rights referred to in s 211. Also the section is a valid exercise of Federal power.49 48 [1995] HCA 47; (1995) 183 CLR 373 at 474. 49 Karpany v Dietman [2013] HCA 47; (2013) 252 CLR 522 at [48]. -- 12 of 22 -- 13 [51] The High Court also considered these sections in Yanner v Eaton.50 In this case the appellant had taken crocodiles by a traditional hunting method. He was charged under the Fauna Conservation Act 1974 (Qld). The Magistrate dismissed the charge. The Queensland Court of Appeal allowed the respondent’s appeal but ultimately the appellant succeeded by majority in the High Court. The majority held that the Fauna Conservation Act did not extinguish Mr Yanner’s native title rights. This was because Mr Yanner had hunted the crocodiles in the traditional way and he had a connection with the land from where they were taken through his clan. [52] Unlike in Yanner, s 211 has no application in this case. This is because each of the appellants are Torres Strait Islanders by descent and they had no native title rights in the particular area with which we are concerned. Section 223 of the Native Title Act provides that s 211 only has application to Indigenous persons who are native title holders under s 223 and s 224 of the Act and are conducting hunting for limited purposes within the area to which they have the necessary connection as a traditional owner.51 [53] In Yanner, the Magistrate had found the appellant’s clan and tribe had a connection with the land and waters where the crocodiles were taken.52 [54] The fact is that Native title is not a creature of the common law, it is what is defined in the Native Title Act.53 Native title holders have been described as “members of an identified group.”54 [55] In this matter there was no evidence that by reason of descent the appellants had any claims to hunt in this area i.e. they were not traditional owners of this area of Queensland. Section 211 did not apply. [56] The question is; has the prosecution disproved that each of the defendants were mistaken that they had a right to take the turtle by reason of a native title right even though 211 did not apply (or some other proprietary right). Section 22 of the Code [57] Section 22 of the Criminal Code 1899 (Qld) provides: “22 Ignorance of the law—bona fide claim of right (1) Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence. (2) But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the 50 [1999] HCA 53; (1999) 201 CLR 351. 51 Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [35]-[40]. 52 Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [33]. 53 Akiba v The Commonwealth [2013] HCA 33; (2013) 250 CLR 209 at [40]-[47]; Members of the Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [75]-[76]. 54 Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; 134 FCR 16. -- 13 of 22 -- 14 exercise of an honest claim of right and without intention to defraud. (3) A person is not criminally responsible for an act or omission done or made in contravention of a statutory instrument if, at the time of doing or making it, the statutory instrument was not known to the person and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it. (4) In this section— publish— (a) in relation to a statutory instrument that is subordinate legislation—means notify in accordance with section 47 (Notification) of the Statutory Instruments Act 1992; and (b) in relation to a statutory instrument that is not subordinate legislation—means publish in the gazette.” [58] The essence of the defence is the defendant holds an honest belief they are legally entitled to deal with the property the subject of the charge. That belief as to entitlement may come from the owner or from a person believed to be the owner as well as from a mistaken belief as to one’s own title.55 [59] The most usual application of the section is where a person does an act in relation to property in the honest but mistaken belief that he or she is the owner of it.56 [60] There is an evidentiary burden on a defendant to raise the defence but once raised the prosecution must negative it beyond reasonable doubt.57 [61] The defence only applies if it is an offence relating to property. This means the wrongful interference with the property of others.58 [62] The respondent relies on authorities to submit that it is not an offence relating to property relying on Scriven v Sargent (No 2)59 and McDonald v Holeszko.60 [63] However one must first turn to the decision of the High Court in Walden v Hensler.61 [64] In the case, an Aboriginal man was found in possession of a partly plucked plain turkey and a live turkey chick. He had shot the turkey in the bush for food and the chick was being kept as a pet. Both birds were fauna under the Fauna Conservation 55 R v Waine [2005] QCA 312; [2006] 1 Qd R 458 at [25]. 56 R v Walsh [1984] 2 Qd R 407 at 408. 57 Olsen v the Grain Marketing Board [1962] Qd R 580 at 589; Stevenson v Yasso [2006] QCA 40; [2006] 2 Qd R 150; 163 A Crim R 1 at [99]. 58 Pearce v Paskov [1968] WAR 66. 59 [2017] QCA 95; [2018] 1 Qd R 282. 60 [2019] QCA 285. 61 [1987] HCA 54; (1987) 163 CLR 561. -- 14 of 22 -- 15 Act and the man had no license to take them. He believed in accordance with Aboriginal custom and his own practice he was entitled to take the turkeys as “bush tucker” and he committed no offence in so doing. In a 3-2 decision, it was held that s 22 of the Criminal Code did not afford a defence. Brennan, Deane and Dawson JJ formed the majority. [65] Brennan J held that plain turkeys in their wild state are not “property”. He held at page 566; “The right to catch and kill is not a right of property in wild animals but an incident of the ownership of the soil. Nor are wild animals in the enjoyment of the natural liberty capable of being stolen …” [66] Deane J on the other held that the fauna was property as it was property of the Crown. His Honour found that the reference to “an offence relating to property” should not be narrowly construed. [67] However, his Honour dismissed the appeal stating at page 583; “In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights. Accordingly, the defence of honest claim of right was not available to the appellant in the circumstances of the present case.” [68] Dawson J held that s 22 did not apply as the prohibition was a general one against the keeping of fauna irrespective of any right to possess the fauna. There was no scope for s 22. His Honour noted at page 592; “It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner …” [69] He held at page 594 that; “Ignorance of the prohibition itself is mere ignorance of the law and affords no excuse.” [70] Toohey and Gaudron JJ dissented and would have found for the appellant. Toohey J held that s 22 applied and the turkeys were property. Gaudron J also preferred a wide operation of s 22. [71] In my view, Deane, Toohey and Gaudron JJ supported the contention that the offence was an offence relating to property. [72] I now turn to the cases referred to by the respondent. [73] In Scriven, the appellant had been convicted of carrying out an assessable development on his property without a permit i.e. clearing vegetation on his land. He argued that s 22 of the Code had not been excluded. -- 15 of 22 -- 16 [74] The appellant did not succeed. Boddice J held that the vegetation was not a fixture for the applicant’s use. Further the appellant’s belief only amounted to ignorance of the law which was no excuse. [75] In McDonald v Holeszko,62 the appellant had been found guilty of offences of carrying out an assessable development without an effective development permit. Again he unlawfully cleared native vegetation on his property. Scriven was followed and the appeal was dismissed. [76] There were differing views in the Queensland Court of Appeal decision of Stevenson v Yasso.63 In that case the appellant had been acquitted of unlawfully possessing fishing apparatus. He was an Aboriginal and claimed he possessed the items to take fish under Aboriginal tradition. The appellant succeeded. [77] McMurdo P held that the net was property for the purposes of s 22 of the Code. Her Honour after analyzing Walden v Hensler concluded at [64] that the relevant provision was an offence relating to property. [78] McPherson JA dissented in the result. He held at [102] that s 22 did not apply as the offence of possessing the net operated independently of any element of catching a fish with it. [79] Fryberg J did not express any concluded view on the s 22 issue but did say it would be necessary to take into account s 211 of the Native Title Act. [80] Stevenson was considered in Mueller v Vigilante64 McKechnie J considered a case where the respondent had been found not guilty of possessing protected fish on the basis of s 22. His Honour held that the respondent could claim a right to possess the fish on the basis he was exercising native title rights. His Honour thought the decision of Walden v Hensler might now not apply in light of the Native Title Act. [81] His Honour preferred the view of McMurdo P to that of McPherson JA. His Honour at [26] held that s 22 was available as a defence and was not excluded. [82] In my view the approach by McMurdo P and McKechnie J is correct. I consider s 88 of the Nature Conservation Act is an offence relating to property. [83] In this matter if a person honestly believed they had a right to take a turtle pursuant to a native title right that relates to a property right i.e. they have a lawful right to possess the animal. In that way it goes beyond a mere mistake as to the law. I consider Scriven and McDonald are distinguishable. Those two cases relate to carrying out an unlawful development which is an offence more remote from an offence relating to property. [84] My view is strengthened when one reads the decision of Yanner v Eaton65 where the majority held that the crocodiles in question were property for the purposes of s 211 of the Native Title Act. 62 [2019] QCA 285. 63 [2006] 2 Qd R 150; 163 A Crim R 1. 64 [2007] WASC 259; 17 A Crim R 506 at [17]. 65 [1999] HCA 53; (1999) 201 CLR 351 at [22]-[30]. -- 16 of 22 -- 17 [85] The fact is native title rights are in rem not in personam.66 [86] Also, I note s 1 of the Criminal Code defines “property” in an inclusionary provision as: "property" includes— (a) every thing animate or inanimate that is capable of being the subject of ownership; and (b) money; and (c) electrical or other energy, gas and water; and (d) a plant; and (e) an animal that is— (i) a tame animal, whether or not naturally tame; or (ii) an untamed animal of a type that, if kept, is usually kept confined; or (iii) an untamed animal in a person’s possession or being pursued for return to possession after escape; and (f) a thing produced by an animal mentioned in paragraph (e) ; and (g) any other property real or personal, legal or equitable, including things in action and other intangible property.” [87] “Animal” is defined in s 1 as “includes any living creature other than mankind”. [88] I therefore find it was arguable that the appellants had a claim of right available under the law (as to the application of s 211 of the Native Title Act) in this case. [89] But the appellants presumably knowing the difficulty of this67, also sought to argue that there existed a general native title right to take the turtle. This was not argued to be pursuant to Mabo v Queensland (No 2)68 but under pursuant to Akiba v The Commonwealth (No 2)69. Again this is because the ultimate test to be derived from Mabo is that a customary law must come from traditional observances of a group of people and the members of the group must show an unbroken attachment and must have observed the custom from time immemorial.70 The evidence does not support this. [90] In Akiba before Finn J thirteen island communities in the Torres Strait applied to the Federal Court under the Native Title Act for a determination of native title over part of the waters of the Strait. Finn J made a native title determination over the waters which included a non-exclusive group right to access and take resources in that area 66 Akiba v The Commonwealth [2013] HCA 33; (2013) 250 CLR 209. 67 Bearing in mind the concessions made by the appellants in evidence. 68 (1992) 175 CLR 1. 69 [2010] FCA 673; 204 FCR 1 at [502]-[510]. 70 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at pp 58-62. -- 17 of 22 -- 18 even though certain reciprocal rights were found not to constitute native title rights under s 223 of the Native Title Act.71 [91] Finn J at [507] held that under Islander laws and customs status based relationships give rise to rights and obligations that are reciprocal in character in the sense that they will enjoyed and discharged by one or other of the parties as the situation requires. [92] The Full Court of the Federal Court in The Commonwealth v Akiba72 allowed an appeal by the Commonwealth but not on this ground. [93] Akiba appealed to the High Court which gave the decision in Akiba v The Commonwealth.73 [94] French CJ and Crennan J on this aspect accepted Finn J’s decision (which had been upheld by the Full Court). At [45] it was noted that such rights were not possessed by the claimants themselves but are held through the native title holder who does have a connection. The plurality agreed at [47]. [95] I might say I have some doubts as to whether Akiba (No 2) does apply as that case was concerned about a traditional claim in the Torres Strait for particular groups. There was detailed evidence given about the reciprocal rights issue. Such detailed evidence is absent here. [96] This point was picked up in Dudley and Others v Department of Primary Industries74. In that case defendant also sought to rely on Akiba.75 However the Full Court of the Supreme Court of South Australia pointed out the need for detailed evidence at [103]- [107]. There is a critical distinction between evidence merely establishing a history of engaging in a particular activity (as is the case here) and evidence establishing a native title right.76 [97] It was said that in order to establish a native title right as opposed merely to observable standards of behavior the right must have its origin in some law or custom having a normative content and deriving from a system or body of norms.77 [98] Like in Dudley in this case there was no evidence that there was in place a system of recognized rules which lead to the appellants’ right to hunt and kill the turtle on 16 April 2017.78 [99] Also in Akiba v The Commonwealth79 it was said that the existence of reciprocal rights for “secondary rights holders” could not be recognised as native title rights because 71 [2010] FCA 673; 204 FCR 1 at [509]. 72 [2012] FCAFC 25; 204 FCR 260. 73 [2013] HCA 33; (2013) 250 CLR 209. 74 [2018] SASFC 23; (2018) 231 LGERA 13. 75 [2018] SASFC 23; (2018) 231 LGERA 13 at [100]. 76 [2018] SASFC 23; (2018) 231 LGERA 13 at [108]. In this regard I note another judge of the Court refused leave to the appellants to adduce fresh evidence on this question. I have not been asked nor do I have the power to further entertain that application; see Sabatino & Anor v Slatcher [2020] QDC 308. 77 [2018] SASFC 23; (2018) 231 LGERA 13 at [104]; Members of the Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [38]-[42]. 78 [2018] SASFC 23; (2018) 231 LGERA 13 at [118]. 79 [2013] HCA 33; (2013) 250 CLR 209 at [40]-[47]. -- 18 of 22 -- 19 they arose from personal relationships rather than a connection of those secondary rights holders to the land and waters the subject of the native title determination. [100] As French CJ and Crennan J said at [45], Finn J was correct in his characterisation on the basis of the evidence before him that the characterisation of the reciprocal rights were they were personal rights dependent on status not rights in relation to the waters. [101] Ordinarily, a claim of right arises under statute or the common law.80 It must be an enforceable right under the general law of Australia,81 or as Dawson J put it in Walden v Hensler,82 “a claim of that sort is necessarily a claim to a private right arising under civil law.” A right must be a right in law not merely one which owes its existence to a moral order or non-legal regimen.83 [102] In this regard I note that the High Court has said that native title rights are not derived from the common law.84 [103] It has been repeatedly said that to begin a consideration of a claim for native title one must examine and consider the provisions of the Native Title Act.85 [104] For the above reasons I am doubtful of such a right being relevant to s 22 in this case. [105] However even if one assumes a right to property was created under the Akiba principle, the next question is whether the prosecution had disproved any s 22 defence. [106] Having considered the totality of the evidence, it is my view the prosecution had disproved this defence in the case of each appellant. [107] I make it clear I have considered the cases against each appellant separately.86 Mr Ahwang [108] First, there is the evidence of Mr Mooney that Mr Ahwang was “not part of his country” and not part of the Yuwi people.87 [109] Second, in the interview88 the appellant Mr Ahwang made the following relevant statements: • He was a Torres Strait Islander.89 80 Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562; 125 A Crim R 401 at [16], [89], [102], [103]. 81 DPP Reference (No 1) [1999] NTSC 23; (1999) 8 NTLR 148 at [43]. 82 [1987] HCA 54; (1987) 163 CLR 561 at 592-593. 83 [1987] HCA 54; (1987) 163 CLR 561 at 608-609 per Gaudron J. 84 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [31], [33], [34], [75]-[76]; Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [76]. 85 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [32]. 86 R v SCO & SCP [2016] QCA 248 at [166]-[172]. 87 Transcript Day 1 page 22.1-15. 88 Exhibit 11. 89 Transcript Interview page 2.28. -- 19 of 22 -- 20 • He conceded he did not have the permission to take the turtle from the traditional landowners.90 • He claimed not to be really aware that he could not exercise any traditional rights within the Mackay area saying “not really I thought you know because we are custom from the tradition.”91 • He had been hunting in the area for 40 years. [110] Third, although Mr Ahwang claimed in his evidence in chief that he had hunted under a Native Title right,92 he also said the following: • They did not get a permit that day because the two traditional groups did not see eye to eye. 93 • They had previously hunted with a permit. This time they did not get one as they could not.94 • He knew he needed to have a permit to carry out the activity on 16 April 2017.95 • He knew that traditional owners had to issue him a permit to carry out what he was doing on 16 April.96 • He hunted on 16 April 2017 without the permission of the traditional owners.97 • He had only ever hunted on the conditions of the elders.98 • He agreed his bloodline was from Thursday Island.99 • Any right he had to hunt in Murray Creek was under a permit system of the traditional owners.100 [111] Fourth, one must also bear in mind in 2014 he had been advised by Exhibit 8 that he did not have an ancestral connection to the Traditional owner group and he “may not have native title rights pursuant to the Native Title Act 1993 to undertake hunting activities within this sea country”. [112] Fifth, I also note that Exhibit 4 was the hunting permit granted to the appellant for one day on 20 March 2016. It is noteworthy it was for only one day and did not allow for the hunting of female turtles. In this case a female turtle was taken. This is relevant to their belief on the day of the offence. [113] My assessment of his evidence is that he knew he did not have the right to hunt there without a permit/permission but did so on this occasion because he could not get one from the Yuwibari. 90 Transcript Interview page 2.33. 91 Transcript Interview page 2.37. 92 Transcript Day 1 page 72.32. 93 Transcript Day 1 page 72.43. 94 Transcript Day 1 page 73.5. 95 Transcript Day 1 page 74.30. 96 Transcript Day 1 page 74.35. 97 Transcript Day 1 page 74.40. 98 Transcript Day 1 page 74.42. 99 Transcript Day 1 page 75.3. 100 Transcript Day 1 page 75.5. -- 20 of 22 -- 21 Mr Sabatino [114] First, there is the evidence of Mr Mooney that Mr Sabatino was “not part of his country” and not part of the Yuwi people.101 [115] Second, the appellant Mr Sabatino made the following relevant statements in the interview: • He was a Torres Strait Islander and that was his heritage.102 • He did not have permission from the traditional owners to take the turtle. He said he tried to ask and the bloke that used to do it said he didn’t do it anymore.103 • He last made a request four months prior.104 • He claimed to have hunted in the area for 40 years.105 • Every other time they got a permit.106 [116] Third, although Mr Sabatino gave evidence in chief that he had been hunting for 40 years not for fun but for cause, he made the following admissions: • They asked for a permit all of the time.107 • He knew that he needed a permit to do what he was doing.108 This is because he was from Thursday Island.109 • In the Mackay area he would seek a permit to carry out traditional rites.110 • He accepted that he asked for a permit but they did not give him one.111 [117] Fourth, one must also bear in mind in 2014 he had been advised by Exhibit 7 that he did not have an ancestral connection to the Traditional owner group and he “may not have native title rights pursuant to the Native Title Act 1993 to undertake hunting activities within this sea country. [118] Fifth, I also note that Exhibit 6 was the hunting permit granted to the appellant for one day on 20 March 2016. It is noteworthy it was for only one day and did not allow for the hunting of female turtles. In this case a female turtle was taken. This is relevant to their belief on the day of the offence. [119] Equally my assessment of his evidence is that he knew he did not have the right to hunt there without a permit/permission but did so on this occasion because he could not get one from the Yuwibari. 101 Transcript Day 1 page 22.1-15 102 Transcript interview page 7.150. 103 Transcript interview page 8.160. 104 Transcript interview page 8.169. 105 Transcript interview page 8.173. 106 Transcript interview page 8.178. 107 Transcript Day 1 page 67.25. 108 Transcript Day 1 page 68.37. 109 Transcript Day 1 page 68.40. 110 Transcript Day 1 page 68.45. 111 Transcript Day 1 page 69.5. -- 21 of 22 -- 22 Conclusion [120] On my view of the evidence on this occasion each of the appellants hunted without a permit because they could not get one. However this did not justify their actions. They knew they were not traditional owners of the waters near Murray Creek. They knew they needed a permit/permission from the elders. [121] On my review of the evidence I conclude beyond reasonable doubt that each of the appellants did not have an honest claim of right concerning the taking of the turtle. [122] The prosecution succeeded in disproving the defence of honest claim of right in these matters. [123] In all of the circumstances having considered the evidence on review, I am not satisfied any error has been established on the part of the Magistrate. Conclusion [124] For the reasons given I make the following orders: 1. Each appeal is dismissed. 2. The orders made in the Magistrates Court at Mackay are confirmed. -- 22 of 22 --